>> this is "the chris matthews show." >> ask not what your country can do for you. >> tear down this wall. >> i can hear you. >> the time for change has come. >> hail to the chief. thanks to chief justice roberts president obama has secured his place in history. because of roberts joining the four high court liberals, the president's health care act stands. this supreme court is the oldest in nearly a century. the next president is likely to face vacancies. the stakes for left and right are huge this november. and finally, gut check, our panel names the single gutsiest move so far this year by any american politician. try doing this one at home. hi, i'm chris matthews. welcome to the show. with us today, nbc's pete williams. the bbc's katty kay. reuters' joan biskupic. and new york magazine john

heilemann. first up until 10:00 thursday morning, barack obama was having a very bad month of june. but then despite most predictions, chief justice john roberts joined the supreme court's four liberals to let the president avert political disaster. without roberts, a george w. bush appointee himself, the landmark obama accomplishment would have been struck down by the court's conservatives. and the president's opponents would have been handed a battering ram for the coming campaign. any observer could see that a weight had been lifted off the president's shoulders. >> whatever the politics, today's decision was a victory for people all over this country whose lives will be more secure because of this law and the supreme court's decision to uphold it. >> what an unusual pairing. barack obama, the liberal president, progressive president, and chief justice john roberts. they will be joined together in history. >> yeah. and i think you couldn't see this coming. because if you go back to the oral argument, it sure did seem like a majority. court was not prepared to

uphold the law. and now we know why. because a majority. court also said that the government's central theory, which you could do this under the commerce clause, was not constitutional. instead, it was the government's fallback that satched the day. and during the oral argument, chief justice roberts didn't seem very receptive to that. but in the end that's how he came out. that's what saved the day. >> it seemed seemed like he was a better solicitor general than the one the president put forth to argue the case with john roberts made a case for using the taxing authority. and a very dramatic way. better so than the guy making the case when they had the arguments. >> well, the government had put up the two arguments. the customers clause one and the tax one. and in some ways, this was actually a very ordinary way to solve a case that was quite extraordinary in people's minds. because what the justices usually do is try to find the most narrow grounds and that's something pete and i sort of disagree on, this idea of how predictable this was or not. especially with the chief justice who has talked at least outside the court saying i want narrower rulings, and i would like to have it be cross

ideological bounds. chris: if you used the tax thing couldn't anything be justifiable if you apply a tax penalty to it? that's part of my question to you and the other one is it a tax or is it a penalty? >> i think -- chris: we're not buying health insurance -- for not buying health insurance. >> two reasons. one, the court said it isn't a tax for the purposes of the law that says you can't have a tax before it goes into effect. but it is a tax, we can uphold it under the congress' broad taxing authority. so they don't outright call it a tax. they say it's something congress did under its taxing authority. i think the second thing that's hard for people to understand the court says, you know, if congress could bring you into commerce, they could regulate anything. but here, the chief justice is saying, your failure to buy insurance, not doing something can also be taxed. so this is hard for people to understand. it's not the conventional use of the phrase tax but make no mistake about it. the court upheld it because they said it was a tax.

chris: here's the political question, katty. the president began to do it very passively and justified the bill rather than sold it. he's not out there selling it. is he going to now take the opportunity between now and the next several months to say now that i've got the chief justice of the supreme court behind me, a man appointed and a conservative by george w. bush, i've got some firepower with the center, maybe i can sell this now and couldn't sell it before or will he hold back and hope the republicans don't run against him on it? >> the calculations of both republicans and democrats is whether to go out and push this hard. to the extent that it detracts from what is the voters' primary concern, which is jobs and the economy, you want to moderate how much you talk about health care. from both sides. now, i was struck when this was at in its heat a couple of years ago that people even in the white house were saying that there had been a degree of arrogance about the obama team not taking the opportunity to sell this to the people. a bit like the wise professor who thinks, i know best, i don't actually have to tell yu it's best. and they never did it. they never really went out there and pitched it. but there are elements of the

health care law which are still positive to people. they could run on those. chris: and they are the protection of your adult children. >> of children -- chris: preexisting conditions. we have "the wall street journal" that just came out this week. john heilemann, nbc, "wall street journal" poll that showed only 28% of this country was actually rooting for this thing to be upheld. >> yeah. look, the law is pretty unpopular across the country. it's true that if you single out preexisting conditions and the youths staying at shome on insurance those provisions are well liked. the law in total is about 50% of the country is against it. about a third of the country is for it. and the rest are undecided. most people don't want to run for re-election on a law that has basically 50% opposition. it's not -- nothing about this, i think you get a little bit of mileage from the supreme court but the constitutionality of this, even with john roberts' imprimatur, that's a smart set issue. for lower information issue it doesn't mean anything. the slaw not more popular today than it was yesterday. chris: president obama is more popular than this bill.

and justice roberts, even in his legal robes, came out and said it is -- in his ruling that it's not my job to protect the american people from what they elect. this is your guy. and you -- and the congress passed this, live with it but it's constitutional. >> and even right from the bench he was saying -- he made a point saying we're not passing on the wisdom of this. and we're not saying that it was good to tax people in this manner. but that's not our role. our role is to say does it fit within the constitution? and i think that's the message that he wanted to get out there is that it's constitutional but we're not endorsing it. chris: why do judges say that? >> they say this all the time when they uphold something that they know is not popular. or that they know is highly controversial. they say look, we understand people don't like this. but this is -- it's not our job to approve only what people like. we have to follow the law. chris: let's take a look at how this might play for mitt romney. here was his reaction thursday. >> this is a time of choice for the american people. our mission is clear. if we want to get rid of

obamacare we're going to have to replace president obama. chris: we asked the matthews meter, 12 of our regulars including katty and john, is it smarter politics for romney to stretch for repeal or smart tore downplay hyssop sigs to health care at this point? eight say it's better to downplay it. don't push this issue. four say stress repeal. john and katty, you split. katty, you're with the majority. >> we always split. chris: you say it's not a big winner for romney basically. >> for three reasons. one is that he would have to run on repealing a law, parts of which as we've already discussed are popular. i don't think that independents in the country want to go back to that brutal fight that we had a couple of summers ago over the health care law. i justify don't think there's the appetite for it. -- just don't think there's the appetite for it. the base is behind romney and hate obama and already active. and i do think that every time he talks about it, and massachusetts comes up. and it's not that the massachusetts law in and of itself, but it plays into this perception that romney is somehow slippery. that he's somehow a

flip-flopper. chris: you say it's a good one for him to go charging on. zpwhrmple there is nothing in the country right -- >> there is nothing in the country right now that animates the conservative base like this issue. the supreme court lit a firecracker under the right. the left is breathing a sigh of relief. the right is breathing fire. and romney can tap into that in a way that he can do with no other issue right now. chris: you agree, a smart conservative writer who said this will be for the tea party people what roe was for the majority. >> i don't know if it will last that long. roe had a long shelf life. but i think the tea party is going to rally on this and very, very powerful thing. the hatred for this law, a lot of the stuff that we went through with the death panel summer and the town hall meetings, that level of anger is smoldering just below the surface. in this part of the electorate. and i think it's been reignited. by john roberts. >> i spoke to a couple of people who are not in washington and a person -- in missouri, they said actually

that it's not that much interest in this. they were not sitting there at their television screen glued. chris: you read some of this stuff at the end of the week -- >> and look at the polling on where it ranks as a voting issue. yes among the tea party. chris: and people are calling this guy traitor. and wikipedia page. >> they're calling him the new david outer. -- david souter. chris: they're really angry on the hard right. >> one ruling, one day. >> and the guy that gave us -- >> coming there. chief justice john roberts hasn't suddenly gone lefty. chris: let's talk about the role in history here for this decision. a great historian says this law will do for obama what social security was for f.d.r., what medicare was for l.b.j., in history, is this going to be the big one for him in terms of putting his mark in the history books? >> it depends on whether this is his only term or whether he has another one. and it also depends on whether congress repeals it. i also think that in a way, social security and some of these other pieces of landmark

legislation were much better understood by people. very principled arguments for and against this health care law. i don't think most people really have a good sense of what it is. >> i think that's the opportunity for the white house. they do have this opportunity to try and make people -- of course it's complicated. i don't know what's in the bill. chris: is this big for obama historically? >> yeah, this is his legacy. >> it's bigger for obama than chief justice roberts who's appointed for life. >> if barack obama gets re-elected, this law will become real in 2014 and it will be huge for him. if he doesn't get re-elected the republicans will repeal it in toto or in part. and they'll pick it apart over the course of the next congress. chris: and bring the senate -- whoever beats them, if romney beats them he will probably win the senate and have a lot of mower. >> if obama wants to make this he has to win in november. chris: the court's rightward tilt has been going on for decades. we often look at saturday night live here as a mirror of american politics.

and in -- s.n.l.'s very first season on the air, the comedic giants, john belushi, chetchy chase, and dan aykroyd, had great material when the warren burger supreme court upheld a state's right to criminalize private sexual behavior. >> you love it. >> don't tell me what i love. >> oh, go tell it to the supreme court. >> oh, my god! [laughter] who are you? >> we're the supreme court. >> in that case, i'm wanda phillips and i would like you to meet my fiancee, how do you do? >> how do you do? >> order, order. all right, ok, then, just go ahead and proceed with whatever you were doing. and we'll just proceed with what we do. so why don't we just spread out and we'll watch it, ok? [laughter]

>> is that legal or what? >> so far, it's fine. >> no unlawful fondling. >> no, no, no, no. that's a no-no. [laughter] chris: al franken was in that. the senator from minnesota. when we come back, this supreme court is the oldest in many decades. several members of the court could retire in the next presidential term. so mitt romney could make this court even more conservative. and that could last for decades. plus scoops and predictions right from the notebooks of these top reporters. be right back.

chris: welcome back. supreme court historians say that if mitt romney wins this election, the fact that he'll have nearly certain vacancies, to fill, could make the supreme court the most conservative in all of american history. there are four justices in their mid to late 70's right

now. making this the oldest court since the new deal. a study by the way show that the average retirement age. justices over recent years has been 78. and mitt romney is scompange for the chance to make it more -- campaigning for the chance to make it more conservative. >> browbeat the supreme court. in the second term, he would remake it. our freedoms would be in the hands of an obama court. not just for four years, but for the next 40. and we must not let that happen. chris: that's pretty strong talk there by mitt romney. the candidate. what would he like to do with the court, pete? >> well, i think certainly he would like it to be more conservative on questions like abortion. he has said he would still like the supreme court to overturn roe v. wade and turn the decision back to the states. there are questions of gay marriage, voting rights, affirm active action, all coming to the court. but i would also say this.

in the heat of the campaign, we always hear candidates talk about the supreme court and joan biskupic and i obsess about it. i don't think it's ever been a very big issue in a presidential campaign. chris: let's talk about whether there's a responsibility by journalists to make it more aware of people. we all watch this big decision this week. and for a couple of days we'll think about how important the supreme court is. usually by late october, nobody seems to mention it. >> you can never talk too much about the supreme court. but think of what's coming up on the docket. chris: ok. if you were a debate moderator and asked a question of these candidates, what would it be? >> first of all, what kind of person do you want to put on the supreme court? are you interested in the court rolling back protections for abortion rights? what about affirmative action? next fall the supreme court is going to take up a very big university of texas affirmative action case that could completely roll back affirm active action. chris: so race and jender wouldn't matter anymore? -- gender wouldn't matter anymore? >> it would overturn what happened in the mid 2000's with justice o'connor saying the university of michigan could use race as a factor.

>> in admissions. >> we've got that up there and a big voting rights percolating. and look at same sex marriage issues that are coming that way, too. the defense of marriage act is being challenged right now. that's -- that's probably going to get to the supreme court and prop eight in california. so these are big social issues that are actually more important. chris: john, do you think the obama campaign in its brain, including the president and the smart people around him, are they hoping to avoid a big discussion of these court issues like same sex marriage? do they want to go into saying -- charlotte and have that be a big noise maker at the convention? >> i think that the -- the obama campaign is running a mick row targeted operation that's about -- microtargeted operation that's about picking up pieces of the obama base and driving up those numbers as high as possible. whether you talk about them as court issues or as social issues that the court may confront they want to talk about that because they think it fires up their base. >> the liberal agenda for the courts. we were preparing this show today. if could you double the number of liberals on the court what would you actually do? what would they want done?

>> protect abortion rights and do the opposite of what joan is saying what the republicans want to do. chris: keep affirmative action. >> keep affirmative action, protect abortion rights. chris: go all the way to gay marriage and marriage equality, would they go for that, some kind of guarantee? >> yeah. chris: if the liberals had power -- >> 5-4 on abortion rights. >> bigger cushion. and ditto on gay rights. definitely. chris: and which of the two presidents, presidential candidates, the president or governor romney would be more likely to pick centrist judges, ones that could get a good supermajority in the senate? >> saying that centrist is a loaded term. it's usually a democratic president is more likely to appoint someone near the middle who is less ideological. chris: katty? >> look at obama's record, he put -- appointed elena kagan who is liberal and sotomayor who is not particularly liberal and that leads you to think he's more of a centrist. >> with bill clinton put on stephen breyer and ruth bader ginsburg.

chris: why do republicans lean hard right on their picks? >> roe v. wade. that really made a difference. chris: they want to get rid of it. >> and also the obama health care. republicans have sort of played their game in the courts in a way that liberals never -- chris: and even if they lose the nomination fight they still win because they have a judge bork that they can keep talking about, robert bork, they're still talking about how he was -- >> the lower courts as well. much more of a strategy. >> they have figured -- changed things. they have dominate lt the lower courts. >> the rhetoric of we will not leth from the bench, we doesn't want unelected elites in robes telling us what to do all that plays to the republican grassroots very strongly. chris: they don't like the court. they don't like it. when we come back scoops and predictions from the notebooks when we come back scoops and predictions from the notebooks of these top reporters.

chris: welcome back, pete, tell me something i don't know. >> when john roberts joined the liberals only the second time. he joined them in a decision about mortgages and shortly after he came on the bench. chris: mortgages. exciting. katty. >> a little economic note. the weak ended well for markets. and ended well for the euro. but in conversations at the white house, i'm amazed at how much time senior officials are spending dealing with the euro at the moment. america is on the sidelines. and it is critical coming election. chris: the decider i think in many ways. joan. >> in the future you're going to see a lot of shifting between the two sides at the supreme court. kind of an easing of the ideological divide. but you'll still consistently see antonin scalia saying very strongly from the supreme

court's bench just like he did earlier this week in the immigration one. chris: john. >> the romney campaign has been staggeringly slow and unprepared for the bain attacks of the obama campaign has launched against it. they are seeing that they're actually working. and we've seen some polling in the laugh week that shows those ads are cutting in -- in the last week that shows those ads are cutting in swing states. and get on top of that problem and have ready responses. chris: will they get jobs for all those people they fired? just kidding. when we come back the big question this week, which american politician made the gutsiest move so far this year? we're going to ask our panel to name them. and we'll be right back.

chris: welcome back. we read "the new york times" this week that members of zimbabwe's legislature, adult men, got circumstance um vysed as a way to encourage -- circumcised as a way to encourage men to avoid h.i.v. one there getting the

procedure. you got to say that's a very admirable and gutsy move. and that brings us to this week's big question. name an american politician you think has made a big gutsy decision so far this year. pete williams. >> nothing of that magnitude comes to mind. but i do think the obama administration's decision to fast track the health care case, bypass the big court of appeals and move it to the supreme court was very bold. chris: fast and furious. >> when you --eth nigsity, i was surprised how long -- ethnicity, i was surprised how long it took for a gutsy move. i was going to say jeb bush but olympia snow and her decision when she resigned to call it as it is and say you cannot function in this part. chris: and jeb bush had said earlier, said recently that this party has moved too right for him. >> actually similar turns from both of them. >> i was going to say either jeb or olympia snow but i'll fall back on a member of the court justice john paul stephens who at age 92 is still out there making big speeches

against citizens united and yesterday, was in the courtroom when he saw the liberal majority prevail. >> i live in new york city. and the mayor, mayor bloomberg, has just banned the sale of huge cups of sugary soft drinks. and the boldness there, you don't know what kind of bravery it takes to stand between a fat person and their big gulp. chris: thanks for a great roundtable. pete williams, katty kay, joan biskupic, and john heilemann. and that's the show. thanks for watching. happy fourth of july. that's a big one for all of us. we'll see you back here next week.